Legal humor. Seriously.

Current Affairs

Recess itself is still allowed, for now, but it appears that students will have to spend it standing quietly in one place:

As CBS 2’s Jennifer McLogan reported Monday, officials at Weber Middle School in Port Washington are worried that students are getting hurt during recess. Thus, they have instituted a ban on footballs, baseballs, lacrosse balls, or anything that might hurt someone on school grounds.

* * *

“I think we need the soccer balls, the footballs and everything, so we can have some fun,” one student said.

But the students will have no such option anymore. They were just informed that during recess, football is out and Nerf ball is in. Hard soccer balls have been banned, along with baseballs and lacrosse balls, rough games of tag, or cartwheels unless supervised by a coach.

According to a press release on the school district's website, the reason it has nerfed recess is because a construction project has limited the space available for recess. "With children in such close proximity to each other," the statement says, "it is not safe for them to be engaged in unstructured play with hardballs.... Absent the confined space within which recess must temporarily be held, such restrictions would not be necessary."

No construction is visible on this Google Earth image, but these images are not necessarily current. In the corner of the school's yard (top left) can be seen a backstop of the kind once used by our barbarian ancestors for the bloody sport known as "baseball," but presumably the construction project is intended in part to eliminate that brutal memory. Assuming there is construction in progress that restricts space in a way that somehow renders "unstructured play with hardballs" potentially deadly, it seems fair to wonder why they don't use the high school's much larger field (right).

The little snowflakes would have to cross a concrete parking lot to get there, it's true, but with the right mix of crossing guards, helmets, pads, and rubberized concrete covers it might be possible to accomplish that once a day without too many casualties.

There's yet another field just to the north, but that is across the street so I assume that is out of the question.

According to the CBS2 report, the district's superintendent said that the change in policy was warranted "due to a rash of playground injuries," although if that's true it's funny that the press release didn't mention any of those. Some cynical parents reportedly believed the change was "really about liability and lawsuits," and I suppose that's possible.

There is no shortage of stories like this, of course, including this very similar one from a couple of years ago that led to international ridicule and at least one frankly childish headline. See "Playground Covered in Pillows for Safety Reasons," Lowering the Bar (Nov. 22, 2011); "School Partially Lifts Ban on Playing With Balls" (Dec. 1, 2011). And those were Canadians freaking out. Of course, maybe they caught this disease from us, but it seems to be raging there now. According to this National Post report, the first day of school in Toronto was a terrifying ordeal; one neighborhood was scoured by dozens of officers and a K-9 unit after a kid went to the wrong classroom, and "experts were consulted" to discuss options after another one got off at the wrong bus stop. The bus company is now said to be considering RFID tags for children so that they can be tracked at all times. What could go wrong?

Back in the land of the free and the home of the constantly terrified, a school in Arizona recently took steps to keep an armed man off its property. That'd be fine except that he was a police officer. Scott Urkov dropped his kid off at elementary school on his way to work, prompting calls from "some parents who were concerned about the fact that there was a fully armed officer on campus." Huh? Level-headed school officials then did the reasonable thing by calling the officer and asking him not to wear his uniform and gun to school again. Wait, what?

The officer said he had been advised by the department not to comment, but that was after he posted "Are you freaking kidding me?" on his Facebook page.

Look, we all want kids to be safe, but just like with adults, there is no such thing as absolute safety. Terrifying events are terrifying, but the fact is that the chance that your kid will be seriously injured at school or that you will be hurt in a terrorist attack are infinitesimal. Take reasonable precautions (which do not include the TSA) and then go on with your life, for God's sake.

Although people who are blind can participate fully in nearly all life’s experiences, there are some things, like the operation of a weapon, that may very well be an exception.

Patrick Clancy, SuperintendentIowa Braille and Sight Saving School

There's no reason solely on the [basis] of blindness that a blind person shouldn't be allowed to carry a weapon.

Chris Danielson, Public Relations DirectorNational Federation of the Blind

I'm not an expert in vision. At what point do vision problems have a detrimental effect [on firing] a firearm? If you see nothing but a blurry mass in front of you, then I would say you probably shouldn't be shooting something.

Sheriff John LeClereDelaware County, Iowa

When you shoot a gun, you take it out and point and shoot, and I don't necessarily think eyesight is necessary.

Michael Barberblind person

Imagine me with a gun. It's just crazy.

Stevie Wonderanother blind person

Is it, Mr. Wonder? Or is it just … <looks into camera> … very superstitious?

The legal issue, or at least a legal issue, is whether an Iowa law that requires officials to issue permits in most circumstances also applies if the applicant is blind. Some people think that to deny a gun permit merely because of blindness is illegal discrimination. Others note that disability accommodations usually need only be "reasonable," and also suggest there is value, and maybe even an important public safety interest, in making sure that gun owners can actually aim before blazing away.

Personally, I'm with Stevie on this one. I don't think anybody argues it's unreasonable or discriminatory to deny a driver's license to someone on the grounds that they can't see where they're going, so I'm not sure why it should be any different if someone can't see where he's shooting.

Seems like there should be some bipartisan support for this one, but it doesn't seem to be moving forward.

In July, U.S. Rep. Steve Stockman (R-Tex.) introduced a bill that would cut off federal funds to any school that punishes a child on imaginary-gun-related charges, citing a variety of recent incidents of that kind. "Something must be done to restore sanity to the schoolroom," Stockman said, and while Congress really is not the prime candidate for doing that in schools or anywhere else, it is nice that somebody is at least pretending to do something.

(a) No funds appropriated pursuant to any provisions of law may be used for any educational institution which punishes a student as a result of any of the following actions by the student:

(1) brandishing a pastry or other food which is partially consumed in such a way that the remnant resembles a gun;

(2) possession of a toy gun which is two inches or less [in length];

(3) possession of a toy gun made of plastic snap together building blocks;

(4) using a finger or hand to simulate a gun;

(5) vocalizing imaginary firearms or munitions;

(6) wearing a T-shirt that supports Second Amendment rights;

(7) drawing a picture of, or possessing an image of, a firearm; or

(8) using a pencil, pen or other writing utensil to simulate a firearm.

As the general subject matter and especially item #6 might suggest, in addition to being concerned about sanity in the schoolroom Rep. Stockman is a strong supporter of gun rights. In fact, of the 11 bills he has introduced since he became a Congressman, seven of them have something to do with the latter issue.

That includes the "Save Endangered Species Act of 2013," which despite its name would require an exception to the actual Endangered Species Act so that three endangered species could be hunted. The argument is that these species are only endangered overseas and are "flourishing" in Texas; fine, but the name is still pretty remarkable.

Anyway, nothing wrong with supporting gun rights, in my view, but personally I think it's enough to wear the Team Sanity t-shirt to this rally. I've already written about (among others) the pastry-gun and Lego-gun (or "plastic-snap-together-building-blocks-gun") incidents; the pastry-gun incident was dumb enough to getthreeposts. Cutting off federal funds might be a bit of an overreaction in the other direction, but again: somebody please do something.

Update: The flickr account linked above has a number of other pastry-gun-related photos, as well as a lot of other good stuff. The kit shown in the picture appears to be for a .45-caliber Pop-Tart gun, but there's one that looks like a Beretta too. Both look pretty tasty.

I have been advised that this article is on the Washington Post's [w]ebsite today and has a clickable link title[d] "The NSA [s]lide you['ve] never seen" that must not be opened. This link opens up a classified document which will raise the classification level of your [u]nclassified workstation to the classification of the slide which is reported to be TS/NF [Top Secret/No Foreigners]. This has been verified by our Mission Partner and [is] the reason for this email.

If opened on your home or work computer you are obligated to report this to the SSO as your computer could then be considered a classified workstation.

Again, please exercise good judgment when visiting these webpages and clicking on such links. You are violating your [n]on-[d]isclosure [a]greement in which you promise[d] by signing that you [would] protect [c]lassified [n]ational [s]ecurity [i]nformation. You may be subject to [] administrative or legal action [by] the [g]overnment.

SSOs, please pass this on to your respective components as this may be a threat to the systems under your jurisdiction.

If you are already looking at this blog post, which you obviously should not be, it is at most permissible to read the email above and in fact you are required to read it and comply if you haven't already done so, but do not look above the line immediately preceding that email because your eyeballs would then be directed at the classified information currently on the Washington Post's website. Your eyeballs could then be considered classified workstations and would have to be secured and kept in a jar on your desk at all times for use only with classified materials.

Also, you are to ignore the bracketed material in the reprinting above and assume that the original message was within a reasonable range of grammatical accuracy, even if you read the original message. Remember that you agreed to capitalize Things that do not otherwise need to be Capitalized when you became a Government Employee with access to Capitalized National Security Information.

Further, we have determined that the earlier report that the slide was classified TS/NF was in error, based largely on the fact that the classification level is written right on the slide (at which, unlike you, we are permitted to look) and is in fact TS/SI/NF. As you know, SI stands for SPECIAL INTELLIGENCE, so the slide is even more specially secret than was previously reported.

Actually, to be completely honest with you, only the title of the slide is classified TS/SI/NF. It would appear that the top and bottom of the slide in fact are classified TOP SECRET/SI/ORCON/NOFORN, so that those parts are even more highly classified in that they represent Dissemination and Extraction of Information Controlled by Originator (ORiginator CONtrolled) information, so there is that also.

A number of other slides you may not see if you are a DHS employee were previously posted here, a link we provide only in order to provide a complete picture of what it is on which you may not click.

Please imagine that, in order to make this a law-related post, I have just written a detailed legal and scientific analysis of the legal and consitutional issues raised by aerial surveillance and what measures you might take to protect yourself from the same. Certainly I would do that if I had time today, but let's be honest—what I really want to tell you is that Osama bin Laden reportedly wore a cowboy hat when he was outside, in hopes of "avoiding detection from above."

The report concludes, though not in so many words, that it didn't work.

Proven ineffective

Al Jazeera has just released a leaked report by Pakistan's "Abbottabad Commission," set up to investigate the facts surrounding the raid that killed bin Laden, who, as you may have heard, was hiding there (in Pakistan, not inside the commission). The commission's mandate was to learn, among other things, (1) how bin Laden was able to hide in Pakistan for so long and (2) how the U.S. snuck in and got him. The unsurprising conclusion: both were due to negligence and incompetence (at lower levels), and there is no actual evidence that Pakistan conspired at either result. (It'd be surprising if a commission like this came up with any other conclusion, that is—which doesn't mean it's not true.)

The really interesting detail it uncovered, though, is this: "When OBL moved about the Compound he wore a cowboy hat to avoid detection from above." (p. 41)

This fact does not seem likely to have been made up, because—well, first, if anybody would make up the fact "Osama bin Laden had a cowboy hat," it wouldn't be a commission of senior Pakistani officials, I don't think. Second, the sentence appears in a section of the report relating what the Commission learned from bin Laden's wives, a group that seems even more unlikely to have made this up. Third, I can't think of a motive to make this up, at least not on the part of anyone being serious. So based on that line of "reasoning," I am willing to accept this as 100% proven.

Who fed him the idea that wearing a cowboy hat would protect him from drone or satellite surveillance?

Lacking any evidence on the first question, I'm going to assume it was one of those giant foam novelty cowboy hats. And after all, the bigger the hat the greater the protection, if you buy the hat theory, although a sombrero would have made more sense. On the second question, we'll probably never know the answer but I hope that person is getting a medal of some kind. "How about this—we plant a story in the Abbottabad Times saying that drones can be spoofed by wearing cowboy hats? Then we look for the guy in a cowboy hat. Problem solved."

The alternative is to believe that the most shrewd and dangerous terrorist of modern times decided, on his own, that if there were drones out looking for a 6' 4" Arab man living in a high-security compound in Pakistan, a good way to avoid being noticed would be to put on a cowboy hat.

If anybody has time to Photoshop a cowboy hat (of any kind) onto a picture of Osama bin Laden, rest assured that it would be posted immediately.

First use of phrase "legalistic argle-bargle" since 1824's Gibbons v. Ogden

In a footnote, Justice Kennedy overturns the outcome of last season's American Idol just to see if anybody is still paying attention

Resolving an issue not raised below, Court rules unanimously that this lady over here bitching about her roommate has no standing to complain to me about it, and remands her case to the jurisdiction of somebody who cares

Justice Ginsberg interrupts reading of Windsor opinion to tell Justice Alito that if he keeps making that face, it's going to stay that way

Justice Thomas dissents on the grounds that there were no gay people in 1789

In another surprise result, Court grants an immediate stay of this lady's bitching about her roommate pending issuance of its mandate

Majority's rationale that "stability and predictability of basic personal relations" may be a liberty interest protected by the Fifth Amendment has broad implications, especially if scholars can construe it to get this lady to shut up

Justices Scalia and Thomas join in separate opinion declaring that they've always found each others' views very attractive and they don't care who knows it

President expresses support for outcome, states that everyone should be able to marry except whistleblowers

The defendants are charged with a string of armored-car robberies. As part of its investigation, the Government obtained (and later produced) phone records for the period beginning September 1, 2010. One of the defendants also wants call records for July 2010, when one of the robberies took place, because he says that will support his claim that he was somewhere else at the time. Previously, the Government said it tried but failed to get the records from the service provider, and therefore "advised Defendant that it did not have the records." Actually, Government (this recent order states), Defendant thinks you probably do:

Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order related to cellular telephone data collected by Verizon, Defendant Brown now suggests that the Government likely actually does possess the meta-data relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.

"Meta-data," as you probably know by now if you didn't already, is data about other data but not actually part of it (my definition). For a phone call, the main "data" would be the conversation, and the "meta-data" would be things like when you made the call, what the closest cell tower was when you made it, the number you called, and so forth. That's what Brown wants, and what the Government told him it doesn't have and couldn't get. Only, it does have his meta-data, because it has everybody's meta-data:

As relevant here [the court went on], the [FISA] Order appears to authorize, under 50 U.S.C. § 1861, the production of “all call detail records or “telephony metadata” created by Verizon for communications … wholly within the United States, including local telephone calls.” The Order defines “telephony metadata” as “comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (MSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.”

I'm guessing Brown was a Verizon customer, but it probably doesn't matter.

Under 50 U.S.C. § 1806, the target of such surveillance can ask for the information obtained. If the Government claims disclosure would harm national security—and you get no prizes for correctly guessing whether it will do so here—then the court reviews the matter in private to decide whether the surveillance was lawful (otherwise the review is in open court). Accordingly, the court ordered the Government to make the national-security claim if any immediately (yesterday was the deadline), because the trial is apparently underway.

As the court noted, the Government could avoid this particular unpleasantness by producing the requested material and stipulating that it would not use it against the defendant. I shall now go see how it responded (if it did) and update accordingly.

Update: The docket available online doesn't show any response by the Government at all. There is a docket entry dated June 11, the day after the order was issued, that is described only as "restricted/sealed until further notice." That could be it, or it could be something else you're not allowed to know about.

Update II: The Sun-Sentinel reports that the Government asked for more time to respond (to be fair, they only had two days), and the judge agreed to allow "an extra week or two." "There are security procedures that must be followed," said an AUSA, and since this is a citizen asking for his own cell phone records, presumably the "security" problem lies in explaining just how the Government happens to have them when nobody else does. Or, more likely, in figuring out how not to explain that.

Of course, neither did Alberto Gonzales, or if he did, he didn't recall:

Now, I don't know whether it's worse to not know anything or to not recall anything. I mean, if you don't know, you don't know, but if you don't recall, then you might know but not recall knowing or you might not know and not recall whether you know or not. Although I guess if you say you don't know, we don't know whether you never knew or whether you once knew but don't know now, which would be the same as not recalling. On the other hand, saying you don't know could potentially be disproven, like by a document showing you did know at the time you said you didn't. But if you say you don't recall, and then it turns out you knew, you could still just say you didn't recall. So I would say that saying you don't recall is worse because we can never really know whether you do or not.

I'm glad I could clear that up, although if they're both lying their asses off, which seems likely, it doesn't matter.

Turns out that my speculation earlier about what changes Pope-Until-Friday Benedict XVI might make to the rules governing conclaves was a little behind the times, since he apparently has (very recently) already released an Apostolic Letter describing those changes.

Looking at this translation of the letter, I was literally astounded to see that two of my ten guesses were right.

I expected to get #1 right, because I had read somewhere that the Pope was going to allow the conclave to be moved up so that there might be a new Pope by Holy Week. Sometimes it seems funnier to start lists like that with something real and then escalate. But the astounding part is that I also got #7 more or less right: "Anyone caught checking a BlackBerry during the conclave will be excommunicated."

I was only thinking of the irritation caused by people who insist on checking their messages while you're supposed to be having an important meeting about legal strategy or scheduling or electing the next Pope or whatever. And the Holy Father probably does hate that, but his motivation here was the secrecy of the conclave. This may not apply to cardinals, but those assisting with the conclave must take the following oath:

“I ... promise and swear that, unless I should receive a special faculty given expressly by the newly-elected Pontiff or by his successors, I will observe absolute and perpetual secrecy with all who are not part of the College of Cardinal electors concerning all matters directly or indirectly related to the ballots cast and their scrutiny for the election of the Supreme Pontiff.”

“I likewise promise and swear to refrain from using any audio or video equipment capable of recording anything which takes place during the period of the election within Vatican City, and in particular anything which in any way, directly or indirectly, is related to the process of the election itself.”

“I declare that I take this oath fully aware that an infraction thereof will make me subject to the penalty of excommunication 'latae sententiae', which is reserved to the Apostolic See."

“So help me God and these Holy Gospels, which I touch with my hand.”

Emphasis added.

So at least if your BlackBerry (or iPhone, or whatever) is a model that has a camera, I'd strongly suggest checking it at the door.